The UK Border Agency ("UKBA") has updated its Guidance to clarify which party must notify the UKBA when a business transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE") results in the transfer of migrant workers sponsored under the new points based immigration system.
The Immigration Asylum and Nationality Act 2006 introduced a points based immigration system for workers coming to the UK from outside the European Economic Area. This requires organisations who want to employ migrant workers to be licensed as sponsors by the UKBA. Under the new Guidance, it is the licensed sponsors duty to report a takeover or merger where sponsored migrants transfer from one business to another.
Therefore, businesses involved in a transfer should check their records for existing migrants so they can comply with this duty.
If an organisation that is not a registered sponsor is taken over by a Company that is a licensed sponsor, it is the existing sponsor who must inform the UKBA within 28 calendar days of the transfer.
If an organisation that is a licensed sponsor is taken over by a Company that is not, then the existing sponsor must inform the UKBA of the transfer within 28 calendar days and the new organisation must apply for a Sponsor Licence within 28 calendar days of the transfer.
If the new organisation fails to do this, permission for the sponsored migrants who have transferred to stay in the UK could be reduced to 60 calendar days, to allow them to find a new sponsor.
If both organisations are licensed sponsors, then the organisation which has been taken over must inform the UK BA of the transfer within 28 calendar days and who now has responsibility for their respective migrants. The sponsor organisation which has taken over the other sponsor organisation must inform the UK BA of the transfer within 28 calendar days and provide details of all the migrants they have taken over responsibility for.